NEW ZEALAND MARITIME PILOTS’ ASSOCIATION v THE DIRECTOR OF MARITIME NEW ZEALAND [2019] NZHC 591

NEW ZEALAND MARITIME PILOTS' ASSOCIATION v THE DIRECTOR OF MARITIMENEW ZEALAND [2019] NZHC 591 [26 March 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-000002[2019] NZHC 591IN THE MATTER OF the Declaratory Judgments Act 1908 andPart 18 of the High Court RulesIN THE MATTER OF Maritime Rules Part 90: PilotageBETWEEN NEW ZEALAND MARITIME PILOTS'ASSOCIATIONPlaintiffAND THE DIRECTOR OF MARITIMENEW ZEALANDDefendantCIV-2018-485-000258IN THE MATTER OF the Declaratory Judgments Act 1908 andPart 18 of the High Court RulesIN THE MATTER OF Maritime Rules Part 90: PilotageBETWEEN NEW ZEALAND MERCHANT SERVICEGUILD IUOW INCPlaintiffAND THE DIRECTOR OF MARITIMENEW ZEALANDDefendantHearing: 6 March 2019Counsel: B J Marten and E P P Maclaurin for New Zealand MaritimePilots' AssociationG G Ballara for New Zealand Merchant Service Guild IUOW IncD R Ferrier and A Roberts for DefendantJudgment: 26 March 2019JUDGMENT OF COLLINS JIntroduction[1] Rule 90.41(1)(b) of the Maritime Rules (the Rules) provides that an applicantfor a maritime pilot licence must, amongst other criteria:1(b) either—(i) hold a certificate as Master issued in accordance with [theRules]; or(ii) hold an equivalent certificate to that referred to insubparagraph (b)(i) recognised or accepted by the Director [ofMaritime New Zealand] under the [Maritime Transport Act1994]; or(iii) provide evidence of experience, qualifications andcompetencies equivalent to those required in subparagraphs(b)(i) or (b)(ii), or otherwise relevant to pilotage, that areacceptable to the Director; [2] The person whose circumstances are the catalyst for this proceeding is anexperienced dredge skipper working for Port Otago Ltd (Port Otago), who holds aqualification that ranks below that of Master and only allows him to operate vesselsunder 500 gross tonnes within domestic waters.[3] As the dredge skipper does not hold a certificate as Master or its equivalent,the question this judgment answers is whether he nevertheless satisfies therequirements of r 90.41(1)(b)(iii), in particular the "or otherwise relevant to pilotage"portion of that rule, so as to enable him to be considered for obtaining a pilot licence.[4] These proceedings have been commenced by the New Zealand MaritimePilots' Association (the Association) and the New Zealand Merchant Service GuildIndustrial Union of Workers Inc (the Guild) against the Director of Maritime1 The full criteria in r 90.41 is set out at [20].New Zealand (the Director). The declarations they have sought have required me toascertain the meaning of r 90.41(1)(b)(iii). I have done so by reference to its text andin light of its purpose.2 This approach has led to the conclusion that the correctmeaning of the rule is close to that advocated for by the Association and the Guild andthat the approach taken by the Director is too broad. I have accordingly issued adeclaration similar to those sought by the Association and the Guild. The declarationI am issuing is set out at [64].Background[5] Piloting a vessel involves a licensed pilot taking control of navigation as a shipenters and leaves a harbour or other narrow passage such as a channel or strait. Pilotshave expertise and local knowledge that allows them to safely navigate difficult watersthat may be foreign to a ship's master. Pilots take control of ships of varying size andtype, including large cruise ships.3 Pilotage requires a high degree of seafaring skilland experience. Usually, port authorities employ pilots and maintain pilot trainingprogrammes that are approved by the Director.[6] The Maritime Transport Act 1994 (the Act) defines "pilot" in the followingway:2 Interpretation(1) In this Act, unless the context otherwise requires,—pilot, in relation to any ship, means any person not being the masteror a member of the crew of the ship who has the conduct of the ship."Pilotage" is defined in a corresponding way by r 90.3 of the Rules.2 Interpretation Act 1999, s 5(1).3 Although in practice there are several grades of pilot licence that limit the size of vessel that thepilot can operate. Pilots generally start at more junior grades and progress up until they can pilotany vessel.[7] The phrase "has the conduct of the ship" is not defined in the Act or in theRules. The term, however, is well established by cases dating back to the mid-19thcentury. For example, in Hammond v Rogers, The "Christiana", it was explained:4 the pilot has charge of the ship, his commands are to be implicitlyobeyed. To him belongs the whole conduct of the navigation of the ship, The pilot has, unquestionably, the sole direction of the vessel in those respectswhere his local knowledge is required; the direction, the course, themanoeuvres of the vessel, when sailing, belong to him; [8] Maritime New Zealand has issued guidelines on the meaning of "having theconduct of the ship". Those guidelines state:5A pilot's primary duty is to use their skill and knowledge to protect ships fromcollision or grounding by safely conducting their navigation and manoeuvringin pilotage waters. This means the function of a pilot is to have the conductof the navigation of the ship.In a compulsory pilotage area the pilot's role is to exercise conduct of the ship,other than in very limited circumstances, such as where the [m]aster hasclearly taken conduct away from the pilot. This should only occur inexceptional circumstances. Examples of when it may be appropriate for the[m]aster to take conduct include:• When the master forms the view that the pilot may be endangering theship; or• When it is considered safer for the master to berth the ship.[9] Before a person can assume the responsibilities of a pilot, they must have alicence as a pilot issued by the Director under s 41 of the Act. The Director may issuea licence if the candidate meets the requirements set out in r 90.41 of the Rules, whichare subordinate legislation promulgated by the Minister of Transport (the Minister)under s 36 of the Act. When issuing the Rules, the Minister must bear in mind his orher functions under the Act, which include promoting safety in maritime transport andprotecting the marine environment.6[10] A "master" is defined in the Act as "any person (except a pilot) havingcommand or charge of any ship".7 A "Master" (formerly Master Foreign Going,4 Hammond v Rogers, The "Christiana" (1850) 7 Moo PCC 160, 13 ER 841 at 845–846.5 "Having the conduct of the ship" Maritime New Zealand Position Statement (April 2018).6 Maritime Transport Act 1994, s 5A(a) and (b).7 Section 2, definition of "master".Master (Unlimited), or Master Class 1) is the highest New Zealand seafaringqualification and it enables those who hold that certificate to be the master of any shipof any tonnage or length and in any operating area.8 Each jurisdiction has its owntechnical requirements governing the acquisition of a qualification as Master, althoughthe essential elements are reflected in the International Convention on Standards ofTraining, Certification and Watchkeeping for Seafarers (the Convention), which hasbeen ratified by most countries, including New Zealand.9 Prior to 2014, the Rulesreferred to a "certificate of competency as Master of a foreign-going ship". The Ruleswere amended in 2014 to bring the terminology in the Rules into line with that in theConvention so that now the Rules simply refer to a "certificate as Master".[11] There are currently 18 categories of certificates issued by MaritimeNew Zealand relating to masters and deck officers. Those classifications includeseven categories of Master, including Master (the qualification referred to in r 90.41),Master on ships less than 3,000 gross tonnes, Master on ships less than 500 grosstonnes (in near-coastal areas or unlimited) and three categories of yacht Master. Thereare five categories of "Mate" and four categories of "Skipper". The dredge skipperhas a certificate under the former regime that is deemed to be a "Master on ships lessthan 500 gross tonnes in near-coastal waters".10 Finally, the Rules provide for twocategories of Watchkeeper.[12] Pilots are required to navigate vessels over 500 gross tonnes within the pilotagearea of Otago Harbour. The dredge skipper, however, has a pilotage exemptioncertificate for his dredge, which allows him to command the dredge himself withinOtago Harbour.[13] On 22 August 2017, Port Otago sought clarification from the Director as towhether the dredge skipper could be considered for pilot licensing, explaining thatalthough he did not hold a certificate as Master, he "does more harbour transits per8 I have used the capitalised "Master" throughout this judgment to refer to this qualification and thelower-case "master" to refer to a person with command of a ship. This approach is consistent withthe Act and Rules.9 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers1361 UNTS 2 (signed 7 July 1978, entered into force 28 April 1984), substantially amended from1 February 1997.10 Maritime Rules, r 32.205(1), Table 44, NZOM STCW 95.annum than our Pilots do". On 4 September 2017, the Director confirmed that he wassatisfied that the dredge skipper "meets the experience, qualifications and competencyrequirements to be appointed as a pilot on successful completion of the approvedtraining programme".[14] Both the Association and the Guild became concerned that the Director'sinterpretation of r 90.41 would have the effect of lowering the standards for becominga pilot in New Zealand.[15] The Association is an incorporated society that represents and advocates forthe interests of maritime pilots. It has 95 members, 65 of whom hold a pilot licence.One of the objectives of the Association is to "promote and maintain safe and effectivestandards of performance of pilotage and associated matters of navigation andmanagement".[16] The Guild is a registered union that advocates for the interests of ship officers,deck officers and associated maritime personnel. The Guild's members include pilots,prospective pilots and masters, who are required to utilise the services of pilots. Oneof the objectives of the Guild is to "watch over and help to promote the best interestsand welfare of all members in regard to conditions of employment".[17] Declaratory relief is sought both in relation to the meaning of r 90.41(1)(b)(iii)and its application to the dredge skipper. The prayer for relief in the statement of claimfiled by the Association seeks:(1) A declaration as to the proper interpretation of [r] 90.41(1)(b)(iii);(2) A declaration that an applicant who holds the [dredge skipper'squalification] does not have the required seafarer competencies, under[r] 90.41(1)(b), to be eligible for a pilot's licence under [r] 90.41 The prayer for relief in the statement of claim filed by the Guild is slightly different.The Guild seeks:(1) A declaration that the decision or intended decision of licensing aperson in the circumstances [of the dredge skipper] is contrary to[r] 90.41; and(2) A declaration as to the proper extent of [r] 90.41 as regardsqualification for licensing a pilot [18] Port Otago has placed the training of the dredge skipper on hold pending theconclusion of this proceeding. The dredge skipper and Port Otago were served withthe proceeding but elected not to take part in the litigation. The parties agree that theHigh Court should exercise its discretion to issue a declaration under the DeclaratoryJudgments Act 1908 because Port Otago may resume its application on behalf of thedredge skipper if I upheld the Director's interpretation of r 90.41(1)(b)(iii) and, in anycase, other ports have expressed interest in following a similar course to thatcontemplated by Port Otago.Maritime Rules[19] Rule 90.1 sets out the purposes of Part 90 of the Rules, which governs pilots:90.1 PurposeThe objective of this Part is to—(a) maintain the contribution of pilotage to the safety of navigation, theprotection of the marine environment and the efficiency of seabornecommerce;(b) set minimum national standards while enabling port-specific risks tobe addressed;(c) provide a licensing regime for pilots and pilotage-exempt masterswithin the maritime document provisions of the Maritime TransportAct 1994;(d) recognise and support industry best practice; and(e) ensure that the provision of pilotage services is sustainable andresponsive to future demands, changes in technology and bestpractice.[20] Rule 90.41 provides:1190.41 Application for pilot licence(1) An applicant for the issue of a pilot licence must make an applicationin accordance with section 35 of the Act, and11 Footnotes omitted.(a) include the information requested on the form required by theDirector; and(b) either—(i) hold a certificate as Master issued in accordance withrule 32.106 of Part 32; or(ii) hold an equivalent certificate to that referred to insubparagraph (b)(i) recognised or accepted by theDirector under the Act; or(iii) provide evidence of experience, qualifications andcompetencies equivalent to those required insubparagraphs (b)(i) or (b)(ii), or otherwise relevantto pilotage, that are acceptable to the Director; and(c) hold a current certificate of medical fitness of category A or Bissued under Part 34; and(d) provide evidence, satisfactory to the Director, of havingsuccessfully completed a structured training programme,approved by the Director, for the issue of a pilot licence forthe pilotage area for which the licence is sought.(2) Every application must be submitted to the Director, with payment ofthe fee prescribed by regulations made under the Act.[21] There is a footnote at the end of r 90.41(1)(b)(iii), which states:This provision permits the Director to consider candidates who havecompleted an alternative training scheme and obtained the necessaryexperience, qualifications and competence to train as a pilot in New Zealand.This will include consideration of candidates holding pilot qualificationsissued by another administration. The Director will assess candidates againstan accepted standard for competency of trainee marine pilots.[22] Rule 90.42 provides:1290.42 Issue of pilot licence(1) Subject to subrules (2) and (3), the Director must issue a pilot licenceif satisfied that the applicant meets the requirements of section 41 ofthe Act.(2) The Director may issue a pilot licence for a period of no more thanfive years.(3) The Director must endorse a pilot licence issued in accordance withthis rule or rule 90.48, or renewed in accordance with rule 90.49,with—12 Footnotes omitted.(a) the pilotage area in which the holder may exercise theprivileges of the licence;(b) the grade of licence, or size and type or category of ship asspecified by the Director, in respect of which the holder mayexercise the privileges of the licence;(c) the recent experience requirements for the licence determinedby the Director in accordance with rule 90.81; and(d) any other conditions the Director considers appropriate in theinterests of maritime safety.(4) In determining appropriate conditions in accordance withsubrule (3)(d), the Director must have regard to any recommendationsof the examination panel conducting the examination.[23] Rule 90.106(2) sets out the minimum requirements for a structured trainingprogramme referred to in r 90.41(1)(d). A structured training programme is requiredto provide detailed instructions on matters, such as:(1) the location of lights, buoys, fog signals and radio beacons in the areawhere the applicant intends to be a pilot;(2) names and characteristics of the channels, shoals, headlands and pointsin that area;(3) tides, depths and prevailing weather in that area;(4) port infrastructure and anchorages in that area;(5) ship handling for piloting, anchoring, berthing and unberthing,manoeuvring with and without tugs, and emergency situations;(6) use and limitation of various types of tugs; and(7) master/pilot relationship and operational procedures.[24] I was informed that common practice has involved port companies designingtheir own general structured training programmes, which the Director has approved.However, the rule also provides for a structured training programme to be amended,taking into account the circumstances of an individual trainee pilot.13History to r 90.41[25] Rule 90.41 can be traced to reg 59 of the General Harbour (Nautical andMiscellaneous) Regulations 1968 that were made pursuant to the now repealedHarbours Act 1950. That legislation delegated the licensing of pilots to localauthorities. Relevantly, reg 59(1)(c) stated that a candidate for appointment as a pilotwas required to "[h]old a foreign-going certificate of competency not lower than thatof [M]aster". In 2003, this criterion was replicated in r 90.7 of the Rules. At the sametime, r 90.9 of the Rules vested in the Director the power to issue pilot licences.[26] In 2007, Maritime New Zealand commenced a process of consultation withinterested parties about the contents of the Rules then in force. Draft Rules were issuedfor consideration in 2007 that included the following proposed rule:The Director may, subject to any condition he or she considers necessary,accept any certificate or qualification he or she considers equivalent to anycertificate or qualification required as a prerequisite for the issue of a pilot'slicence or master's exemption certificate under this Part.[27] The commentary that accompanied the 2007 Draft Rules explained that theproposed amendment set out at [26] would "[widen] the qualification requirementsand scope of individuals who can be assessed for a pilot's licence". The 2007 DraftRules were commented upon by interested organisations, including the Association,the Guild and a number of port companies. Most who commented expressed concernthat the Draft Rules risked lowering the standards for qualification as a pilot inNew Zealand.[28] Following consultation, a further draft set of rules was issued in 2009. Therelevant part of the 2009 Draft Rules provided that an applicant for a pilot's licencemust:13 Maritime Rules, r 90.106(1)(f).(b) (i) hold a Master (Unlimited) Certificate, (Master Mariner), or(ii) hold an equivalent certificate to (i) recognised by the Directorpursuant to section 41 of the Act; or(iii) hold a pilot licence issued by the relevant Authority of a FlagState that is a party to [the Convention], with relevant pilotageexperience acceptable to the Director; or(iv) provide evidence of experience, qualifications andcompetencies equivalent to those required in (i), (ii) or (iii),that are acceptable to the Director;[29] The reference in para (b)(iii) of the 2009 Draft Rules to an applicant holding apilot licence issued by a "relevant Authority" was a response to suggestions thatAustralia was considering training pilots who did not have a certificate as Master orits equivalent. While the evidence on the point was opaque, I was informed that theproposal was not implemented nationwide, although Captain Bolt, the GeneralManager, Marine and Infrastructure at Port Otago, gave evidence that the State ofWestern Australia, where he has worked in a senior pilotage role, does not require itspilots to have a certificate as Master or its equivalent. In some other jurisdictions,such as Singapore and Canada, pilots may also be trained, and certified, withoutacquiring a certificate as Master or its equivalent.[30] The draft criteria for applications for a pilot licence contained in the 2009 DraftRules were, however, not adopted. Instead, the Minister issued r 90.41 in its currentform. It is to be noted, however, that the reference to candidates holding pilotqualifications issued by another Authority can be found in the footnote tor 90.41(1)(b)(iii).Evidence[31] Most of the evidence was filed to assist in understanding the purpose ofr 90.41(1)(b)(iii).[32] Ms McAra, the General Secretary of the Guild, explains that the historicalrationale for r 90.41(1)(b) is that, as a pilot has the conduct of the ship, he or she"should have the qualifications and experience to actually be in command of thatship". Ms McAra also explains that the Otago Harbour poses a variety of challengesfor pilots. For these reasons, the Guild became concerned when it discovered that theDirector considered that the dredge skipper could meet the requirements ofr 90.41(1)(b)(iii).[33] Captain Oliver, a retired pilot with over 30 years' experience at the ports ofLyttelton and Timaru, explains that historically all New Zealand pilots have obtaineda certificate as Master or, in rare cases, had equivalent qualifications, such as extensivecommand of a naval vessel. Captain Oliver explains that the structured progressionrequired for a seafarer to obtain a certificate as Master ensures they have extensiveseafaring experience. He explains that to be certified as a Master on ships of less than500 gross tonnes involves far less training than to be certified a Master and that,accordingly, those who train on smaller vessels lack the experience to competentlyhandle vessels that may be 50 to 60 times larger by volume than the vessels they haveskippered. Captain Oliver also explains the nature of the master/pilot relationship andthe reasons why the master of a ship must have utmost confidence in a pilot.[34] Captain Banks obtained his certificate as Master in 1984 and became a pilot atthe port of Wellington in 2000. He explains the relationship between the training ofmasters and pilots is complimentary: part of the training given to Master candidates involves learning to relyon the assistance of a pilot with local expertise to reduce the risk inherent withevery arrival or departure. Most [m]asters of a large cargo vessel will neverberth their ship without the aid of a pilot during their whole career at sea. Thepilot's background as a [m]aster means the pilot knows what the experienceof visiting a foreign port is like, and is able to understand the visiting[m]aster's needs and assistance.[35] Captain Banks explains the importance of masters having confidence in a pilotto ensure large vessels are satisfactorily manoeuvred in ports and the importance ofmasters and pilots having a "mutual understanding of seamanship and vesselhandling".[36] Captain Banks also explains his understanding of the training regimes for pilotsin other jurisdictions. He refers to an Australian port that explored training pilotswithout a certificate as Master or its equivalent. He says in his affidavit that the portconcerned spent considerable time and effort in sending the applicant to anautical college to undertake the same training as for a certificate as Master and thatthis was followed by an equally long period of practical training. Captain Banks saidthis process took several years compared to the less than a year of pilot training that isnormally required when an applicant has a certificate as Master or an equivalentqualification.[37] Captain Bolt has extensive experience as a harbour master and chief pilot inAustralia. He explains that Singapore, which is the world's busiest port, does notrequire a certificate as Master or its equivalent as a pre-requisite for training as a pilot.Canada has a similar pilot training regime to Singapore. Captain Bolt knows thedredge skipper and has observed him demonstrate "extremely sound seamanship".Captain Bolt also explains: almost all trainee pilots, even those with a Master's certificate essentiallystart pilot training "from scratch". In any event, I regard each individualtrainee as having specific training needs. Experience counts for a great deal.At the end of the day, each candidate has to meet a certain level of proficiencyand if they don't meet that level, they are not going to be progressed in theirtraining. The decision as to who should be trained should be a matter for theport, as employer.[38] Mr Manch, the Director, explains that in his view: the Rules deliberately provide for some discretion on the part of theDirector. One of the areas in which that discretion is provided is in relation tothe qualifications required for the issuing of a pilot licence. I consider that theRules allow the Director to consider an application for a pilot licence from anindividual holding a qualification other than a Master's certificate, as long asthe individual's experience, qualifications and competencies "relevant topilotage" are acceptable to the Director. That is established, I believe, by theinclusion in Rule 90.41(b)(iii) of the words "or otherwise relevant to pilotage,that are acceptable to the Director".[39] Mr Manch emphasises that, in his view, the rule as he has interpreted it doesnot involve a lowering of standards but simply provides a different pathway fromobtaining a certificate as Master to allow individuals to be considered for a pilotlicence.[40] Ms Forsyth, the General Manager of Maritime Standards at MaritimeNew Zealand, has explained her understanding of the Rules relating to pilotage andthe training and certification process for pilots. Ms Forsyth states:Currently, all approved Structured Training Programmes are written with theprerequisite that the trainee holds a Master certificate. Where an individualdid [not] meet the prerequisite, I would expect the pilotage provider to assessthe individual's experience, qualifications and competencies and establish anyadditional training requirements that might arise that might otherwise havebeen met by holding a Master certificate. I would then expect to see aStructured Training Programme, tailored for that individual, with specifictraining to ensure that the trainee achieves the same level of competency asany other applicant who does hold a Master certificate. I do not think thislowers the ultimate standard of certified pilots – it is just a different startingplace for the training activity.Approach to interpretation[41] In explaining the meaning of r 90.41(1)(b)(iii), I shall examine its text and thenits purpose. In doing so, I acknowledge that the meaning of the rule is to be ascertainedfrom its text and in the light of its purpose. Thus, text and purpose have equalimportance.TextParties' submissions[42] Mr Marten, senior counsel for the Association, submitted that the correctinterpretation of r 90.41(1)(b)(iii) rests upon the adjective "equivalent", which he saidmeans a candidate must have experience, qualifications and competencies equal to thatrequired for a certificate as Master either in New Zealand or in another jurisdiction.Mr Ballara, counsel for the Guild, submitted that, in essence, the text ofr 90.41(1)(b)(iii) only engages candidates who have qualified as a pilot in anotherjurisdiction.[43] Mr Ferrier, senior counsel for the Director, submitted that the words "orotherwise relevant to pilotage" in r 90.41(1)(b)(iii) mean the Director has thediscretion to grant a pilot licence to a suitable candidate who does not hold a certificateas Master or its equivalent. He said the words "acceptable to the Director" areimportant as they recognise the Director's broad discretion to determine who satisfiesthe requirements for being a pilot in New Zealand.[44] Mr Ferrier submitted that "or" in the phrase "or otherwise relevant to pilotage"is disjunctive and must therefore refer to experience, qualifications and competenciesthat are not equivalent to a certificate as Master.Analysis[45] In my view, the proper interpretation of r 90.41(1)(b)(iii) must account for thefollowing features of the drafting:(1) Subparagraph (iii) is a single category, not two distinct categories, asthe immediate context of the list suggests all aspects of subparagraph(iii) were deliberately placed under one subparagraph.(2) The phrase "or otherwise relevant to pilotage" must have a meaningdifferent to "experience, qualifications and competencies equivalent tothose required in subparagraphs (b)(i) or (b)(ii)", otherwise it would berendered redundant.(3) All three subparagraphs in r 90.41(1)(b) are based, at least in part, onthe standard of a certificate as Master as the threshold.[46] The only way that all three of those features can be accounted for is to read thephrase "or otherwise relevant to pilotage" as a second limb of a single category thatprovides the Director with the ability to recognise experience, qualifications andcompetences of an equivalent calibre to those held by a person with a certificate asMaster. In effect, that requires reading subparagraph (iii) so as to require an applicantto either:(1) provide evidence of experience, qualifications and competenciesequivalent to those required in subparagraphs (b)(i) or (b)(ii) that areacceptable to the Director; or(2) provide evidence of experience, qualifications and competenciesotherwise relevant to pilotage [in a manner equivalent to those requiredin subparagraphs (b)(i) or (b)(ii)] that are acceptable to the Director.[47] The first limb deals with experience, qualification and competencies that areequivalent to a certificate as Master. This would include, for example, a senior navalofficer, who might not have a certificate as Master, but who has the same skills andexperience as a person with a certificate as Master, along with a naval qualificationanalogous to a certificate as Master. The focus of this limb is on equivalence to anexperienced seafarer with a certificate as Master.[48] The second limb deals with experience, qualifications and competencies thatare relevant to pilotage. This would include a qualified pilot from a jurisdiction thatdoes not require pilots to first obtain a certificate as Master. Such a person would notfit within the first limb because they would not have a qualification in the nature of acertificate as Master, or in other words, a qualification that would allow them tocommand a wide variety of vessels in general circumstances. However, such a personwould necessarily have a pilot's qualification, and the skills and experience of being apilot. Presumably, if those skills were sufficient for them to obtain a pilot licence inthe other jurisdiction, then they would be of an equivalent aptitude to a person with acertificate as Master. The focus of this limb is on equivalence to the seafaring aptitudeof a qualified pilot.[49] That subparagraph (iii) comprises two limbs is supported by the fact that "orotherwise relevant to pilotage" is encapsulated by commas on either side. Thissupports Mr Ferrier's submission that the "or" is to be read disjunctively. The commassuggest that one of the disjuncts involves reading the sentence with the phrase "orotherwise relevant to pilotage" omitted, as follows:provide evidence of experience, qualifications and competencies equivalentto those required in subparagraphs (b)(i) or (b)(ii) that are acceptable to theDirector [50] The other disjunct involves reading the sentence with the phrase "otherwiserelevant to pilotage" included, while excluding the phrase "equivalent to thoserequired in subparagraphs (b)(i) or (b)(ii)", as follows:provide evidence of experience, qualifications and competencies otherwiserelevant to pilotage, that are acceptable to the Director [51] However, the word "relevant" is ambiguous as to the degree to which theexperience, qualifications and competencies must be related to pilotage. The word"relevant" must be coloured by the words around it, in particular by the phrase"equivalent to those required in subparagraphs (b)(i) or (b)(ii)", which suggests theremust be some sort of equivalence with a certificate as Master. The level of relevancetherefore must be high. It cannot be enough that the experience, qualifications andcompetencies are minimally connected with pilotage. The emphasis on a certificateas Master throughout paragraph (b) strongly suggests that the appropriate level ofrelevance is at the same level of aptitude as is required for a certificate as Master.PurposeParties' submissions[52] A large portion of the parties' submissions were directed to the purpose ofr 90.41(1)(b)(iii).[53] Mr Marten's submissions concerning the purpose of the rule can be distilled tosix points. Mr Ballara's submissions substantially reflected those advanced byMr Marten:(1) The primary objective of the rule is to promote maritime safety.Adopting an interpretation that reduces the qualifications required to bea pilot risks compromising the safety objectives of the rule.(2) Maritime qualifications in New Zealand and internationally are highlyprescriptive. Conferring a broad discretion upon the Director todetermine who meets the criteria in r 90.41(1)(b)(iii) would be contraryto the highly regulated nature of the rules governing maritimequalifications.(3) Relying on the evidence of Captains Oliver and Banks, Mr Martensubmitted that pilots should hold a certificate as Master to maintain thetrust and confidence of masters and their crew when the pilot has theconduct of their ship. Mr Marten submitted that allowing persons withqualifications such as those held by the dredge skipper risksundermining the trust and confidence that masters and their crew havein a pilot.(4) Training for a person who satisfies the requirements of r 90.41(1)(b)focuses upon addressing their knowledge of local conditions and notupon expanding their seafaring skills. Mr Marten pointed out that thekey features of r 90.106(2) are directed towards training that examinesan applicant's knowledge of local conditions. He submittedr 90.41(1)(b)(iii) therefore assumes a candidate for a pilot licence inNew Zealand will already have the highest levels of seafaringexperience, qualifications and competence before commencing trainingas a pilot.(5) The history to r 90.41(1)(b) shows that the proposals to expand thequalifications for admission as a pilot in New Zealand were met withbroad resistance. Mr Marten submitted that the opposition to theproposed r 90.41(1)(b) caused the Minister to adopt a narrow and moreprescriptive list of criteria in the rule.(6) The footnote to r 90.41(1)(b)(iii) shows that the drafters of that ruleenvisaged the Director should be able to consider applicants who werealready qualified as a pilot in another jurisdiction. Mr Martensubmitted that this route to obtaining a pilot licence should not beconfused with treating persons, such as the dredge skipper, as satisfyingthe requirements of r 90.41(1)(b)(iii).[54] Mr Ferrier's submissions concerning the purpose of r 90.41(1)(b)(iii) may bereduced to the following four points:(1) The Act and the Rules vest in the Director substantial discretionarypowers and ultimate responsibility for maritime safety.14 The purposeof r 90.41(1)(b)(iii) must therefore be ascertained by bearing in mindthat the Director has broad discretion to determine who may qualify asa pilot in New Zealand.(2) The history of the rule demonstrates that the Minister rejected thehighly prescriptive criteria set out in the 2009 draft of the Rules infavour of the less prescriptive terminology in the rule as it currentlystands. Mr Ferrier submitted this change in approach reflected adeliberate intention to expand the criteria for obtaining a pilot licence.(3) The suggestion the Director's interpretation lowers the standards forpilots in New Zealand is misconceived. Mr Ferrier pointed to theevidence of Ms Forsyth, who explained that the Director's approachexpands the pool of applicants for a pilot licence without lowering thestandards of pilots.(4) Referring to the evidence of Captain Bolt, Mr Ferrier said that linkingthe qualifications of a master with a pilot because of a perceived needfor masters and their crew to trust and respect a pilot was alsomisconceived. Captain Bolt's evidence was that countries such asSingapore and Canada do not require pilots to have a certificate asMaster or its equivalent and that there is no suggestion of a breakdownof trust and confidence in Singapore and Canada between masters andpilots.Analysis[55] In ascertaining the purpose of r 90.41(1)(b)(iii), I start with the Minister'sstatutory functions, which include promoting safety in marine transport. This functionmust be afforded primacy by the Minister when promulgating the Rules. It is alsosignificant that the purposes of the part of the Rules that concerns pilots include14 See Survey Nelson Ltd v Director of Maritime New Zealand [2010] NZCA 629 at [37].promoting safe navigation, protecting the marine environment and maintaining theefficiency of seaborne commerce. The rules relating to pilots also aim to "recogniseand support industry best practice".15[56] There is therefore merit to the concerns about safety raised by the Associationand the Guild. Those concerns are borne from the fact that pilots may be required tohave the conduct of large ships, including cruise liners with thousands of passengers.If Maritime New Zealand and masters are going to trust the ability of a pilot to havethe conduct of a cruise liner solely on the basis of a pilot training programme, thenthat outcome should be developed through clearly thought through policies rather thanadvanced through the courts as an issue of interpretation. This is particularlyimportant given the stringent requirements for obtaining a certificate as Master, whichinclude substantial minimum periods of approved seagoing service.[57] While the Act and the Rules confer discretion upon the Director and provide aframework for holding him or her accountable, there are limits to how much flexibilitythe Director has when assessing the suitability of an applicant for a pilot licence.Those limits are governed not only by the text of the Rules but also by the purposesthat underpin the Act and the Rules, including those referred to at [55].[58] There are two features to the scheme for licensing pilots that are particularlypertinent:(1) The Director does not have a true discretion in relation tosubparagraphs (i) and (ii), or the first limb of subparagraph (iii). Anequivalent certificate under subparagraph (ii) must be "recognised oraccepted by the Director" and the equivalent experience, qualificationsand competencies under the first limb of subparagraph (iii) must be"acceptable to the Director", but there are standards provided for thoseassessments that the Director must have reference to, namely theconcept of equivalence. It would therefore be unusual if the secondlimb of subparagraph (iii) allowed the Director a much broaderdiscretion to accept whatever he or she considered appropriate as a15 Maritime Rules, r 90.1(d).suitable qualification. This would be especially so given the exact samephrase in subparagraph (iii) would be creating different levels ofdiscretion in relation to each limb.(2) There is a clear separation between the qualifications required inr 90.41(1)(b) and the training required in r 90.41(1)(d). It appears thatparagraph (b) is aimed at ensuring candidates have the requisiteseafaring skills to become a pilot, while paragraph (d) is aimed atensuring candidates have the particular skills and local knowledge tobecome a pilot in the relevant pilotage area. This supports theinterpretation that the experience, qualifications and competenciesotherwise relevant to pilotage must be sufficient in themselves to ensurethe candidate has the requisite seafaring skills.[59] Three points emerge from the history to r 90.41(1)(b):(1) First, the rule has evolved from the highly prescriptive requirement thata pilot hold a certificate as Master to a recognition that persons withqualifications equivalent to that of Master may be eligible to become apilot.(2) Second, the changes to r 90.41(1)(b) that were mooted in 2007 to 2009were driven by an expectation that pilots trained in some jurisdictionsshould be eligible for consideration to become a pilot in New Zealand,even though they may never have held a certificate as Master or itsequivalent. This change was driven by an assumption that Australiawas likely to follow a similar model for the training of pilots asSingapore and Canada. It transpired, however, that with the possibleexception of Western Australia, Australia did not follow that course.(3) Third, while the 2009 draft of what is now r 90.41(1)(b) was moreprescriptive than the current law, the changes between the draft and thefinal version of the rule probably reflects drafting style rather thansubstantive policy changes. This conclusion is reinforced when regardis had to the opposition that was voiced to making any significantchanges to the qualifications required for becoming a pilot in thiscountry.[60] It is also significant that the rules that prescribe the training for a pilot primarilyfocus upon ensuring the applicant is well versed in the maritime features of the areain which they intend to become a pilot. The expert evidence confirms that pilottraining programmes in New Zealand predominantly focus on the skills and localknowledge peculiar to pilotage in the relevant pilotage area and assume competencein general seafaring abilities. The few seafaring skills included relate specifically topilotage. The fact that the requirements in the Rules for training a pilot are limited toensuring they are familiar with local conditions somewhat undermines Ms Forsyth'sexpectation that tailored pilot training programmes could ensure that trainees achievethe same level of seafaring competency as an applicant who holds a certificate asMaster.[61] It also appears that the foreign jurisdictions that licence pilots without acertificate as Master have made a deliberate choice to rely on pilot trainingprogrammes to ensure that pilots have sufficient seafaring ability rather than relyingon the holding of a certificate as Master. It is evident, both from the scheme of r 90.41and the nature of the present pilot training programmes in this country, thatNew Zealand has not made such a deliberate choice. In those circumstances, it wouldbe perverse to read a discretion into the Rules that would enable such a method to takeplace in an unplanned manner. While Mr Ferrier is correct to observe that pilot trainingprogrammes can be tailored to the needs of individual candidates, those programmeshave thus far not extended to teaching general seafaring skills. A change of that naturewould be significant given the history in this country of relying on general seafaringqualifications, namely the certificate as Master or equivalent, to ensure that pilots havethe requisite seafaring skills.Conclusion[62] The analysis of the text and purpose of r 90.41(1)(b)(iii) set out at [45] to [51]and [55] to [61] leads to the conclusion that the interpretation advocated by theDirector is incorrect.[63] In my assessment, r 90.41(1)(b)(iii) is to be interpreted in a way that givesprimacy to the requirement to hold a certificate as Master or its equivalent.Consideration may be given under r 90.41(1)(b)(iii) to naval officers with extensiveexperience of commanding naval vessels and to persons who have obtained a pilot'squalification in a jurisdiction that trains pilots without a certificate as Master or itsequivalent. Rule 90.41(1)(b)(iii) cannot be extended to apply to persons such as thedredge skipper.[64] I therefore issue the following declaration:Rule 90.41(1)(b)(iii) of the Maritime Rules allows the Director when receivingan application for a pilot licence to accept either:evidence of qualifications, experience and competencies that areequivalent to a certificate as Master; orevidence of pilot-related qualifications, experience and competenciesthat demonstrate the candidate's seafaring skills are of an equal calibreto a person holding a certificate as Master.[65] The plaintiffs are entitled to costs on a scale 2B basis. There will be an orderfor one set of costs to be split between the plaintiffs unless they reach a differentarrangement.______________________D B Collins JSolicitors:Izard Weston, Wellington for New Zealand Maritime Pilots' AssociationMcBride Davenport James, Wellington for New Zealand Merchant Service Guild IUOW Inc